The popularity of e-readers is soaring, but good luck finding that hot new title at your local library.

Most large publishers refuse to sell critical portions of their digital catalogs for library lending, and those that do are imposing stiff fees and onerous rules.

It's one more point of contention over the behavior of these companies, as the Justice Department reportedly threatens to file a lawsuit accusing them of collusion in the consumer e-book market.

The worry in this case is that as more and more reading occurs on digital devices, these sorts of restrictions could chip away at the value of libraries - and the societal good they promote in providing equal access to information.

"If we're not allowed to have access to or even allowed the ability to purchase that broad array of titles, what does that mean for the longevity of the library?" asked Trent Garcia, electronic resources librarian for the San Francisco Public Library. "What is our role if we don't have access to that content?"

Many libraries do, of course, already offer digital content, but it tends to be either books from smaller publishers or tightly limited catalogs from larger ones.

Simon & Schuster and Macmillan make almost none of their digital content available for library lending, according to the trade publication Library Journal and library sources. Hachette Book Group and, as of late last year, Penguin Group (USA) restrict sales to backlog titles.

Random House and HarperCollins do sell e-books to libraries, but the former just raised prices to library wholesalers like OverDrive by as much as three times, and the latter requires publishers to acquire a new license after a book has circulated more than 26 times.

Major struggle

What's at work here?

Publishers have never been thrilled about public institutions lending out their products for free, because it might undercut total sales. (It's a debatable point since libraries also encourage lifelong reading habits.) But U.S. copyright laws have long protected the rights of libraries - or individuals - who legally acquire books to lend them out.

The nature of digital books, however, gives publishers a new opportunity to assert greater control through technology, terms of service and pricing power. Libraries can't simply buy the virtual books and hand them out in the way they can with physical ones.

The Association of American Publishers and several of the companies in question didn't respond to inquires from The Chronicle. But they've argued in the past that lending e-books is a graver threat than physical ones, demanding a different set of restrictions, because of the lack of "friction."

In other words, to borrow and return a physical book, a person has to get themselves to an actual library at least twice. With digital, they can just as easily download a free book from the library, as they can a full-priced version from Amazon.

Mary Minow, Follett Chair at Dominican University and a library law consultant, argues there are critical differences that do add some sand back into the gears. She noted that e-books are still "due" after a few weeks and that there are wait times for popular titles since libraries acquire licenses to only a specific number of copies.

Some libraries are already pushing back, at least implicitly asserting that existing copyright laws already apply to the digital sphere.

The academic libraries at Texas A&M University have simply been buying digital books in the consumer market and loading them up on Kindles that they then lend out. Others have done the same.

But some of these institutions might be operating in a legal gray area, since the terms of use for some e-readers seem to bar that sort of use.

"Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Digital Content or any portion of it to any third party," read the terms for Amazon's Kindle (emphasis mine).

The Sacramento Public Library announced last year that it would begin lending out Nooks with limited content, though it did so through a partnership with Barnes & Noble.

To clear up any legal uncertainty and protect the privacy of library users, Minow argues that legislators need to amend federal copyright law to assert that libraries can own and lend digital books.

Clarifying ownership

The word "own" is deliberate here, because she believes libraries need to preserve their archives no matter how wholesalers or publishers alter their licensing terms over time. In addition, she said it's difficult to prevent the likes of Amazon or Barnes & Noble from collecting information about reading habits - a hot-button issue in the library world - so long as they're dependent on the normal licensing arrangements.

Others watching this space also think new legal protections are necessary to protect the role of libraries.

"If the companies persist, the library will no longer be a preserver of the cultural record or a provider of community services that assist people who don't have the money to go out and buy this content," said Sarah Houghton, the interim director at the San Rafael Public Library who has drawn attention to these issues on her Librarian in Black blog. "We bridge the digital divide and the content divide."